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Summary

A.O.V. and J.R.V. (names have been kept confidential in light of the father’s military service) were married in 1987. They had three children and moved regularly because of J.R.V.’s military career. The couple divorced in 2004, and J.R.V. came out as a gay man. He also made it known that he was in an exclusive relationship with a man and that they lived together. J.R.V. remained in Virginia, where he was stationed, and A.O.V. moved with the children to South Carolina. In the divorce proceedings, a circuit court judge awarded primary physical custody of the children to A.O.V., with joint custody and liberal visitation to J.R.V, including allowing his partner to be present during the day when the children were visiting. A.O.V. appealed the judge’s decision to not grant her sole custody of the children and his refusal of more draconian restrictions, arguing that J.R.V.’s homosexuality had negative effects on the children. The Court of Appeals affirmed the joint custody and ruled that no further visitation restrictions on J.R.V. were necessary. It also affirmed the trial court’s restrictions prohibiting J.R.V. from having his partner spend the night when the children were visiting or engaging in public displays of affection in front of the children.

Context

Virginia law does not explicitly prohibit gay and lesbian parents from having primary or joint custody of a child or from adopting or being a foster parent. But in the past, Virginia courts have used a parent's sexual orientation to deny, restrict or modify custody and visitation. The ruling in this case confirms that sexual orientation does not disqualify a parent from custody or visitation.

Lambda Legal's Impact

Lambda Legal is solidifying LGBT parenting protections by challenging discriminatory custody laws that improperly impose restrictions on custody and visitation based solely on a parent's sexuality and not the quality of one's parenting.